Citation Nr: 0312276
Decision Date: 06/09/03 Archive Date: 06/16/03
DOCKET NO. 96-22 215 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Veteran and his wife
ATTORNEY FOR THE BOARD
Michelle L. Nelsen, Counsel
INTRODUCTION
The veteran had active service from December 1968 to December
1970.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a March 1996 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Houston, Texas. The claims folder was subsequently
transferred to the RO in Hartford, Connecticut.
The case returns to the Board following remands to the RO in
July 1998 and June 1999.
FINDINGS OF FACT
1 The RO has provided all required notice and obtained all
relevant evidence necessary for the equitable disposition of
the veteran's appeal.
2. The veteran has a diagnosis of PTSD related to described
in-service stressors.
3. The veteran did not engage in combat with the enemy and
his alleged in-service stressors are not related to combat.
4. There is no credible evidence corroborating the veteran's
statements that the alleged in-service stressors actually
occurred.
CONCLUSION OF LAW
Service connection for PTSD is not established. 38 U.S.C.A.
§§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(d)
and (f) (2002); 38 C.F.R. § 3.304(f) (1997).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board observes that the Veterans Claims Assistance Act of
2000 (VCAA),
38 U.S.C.A. § 5100 et seq. (West 2002), eliminated the
requirement for a well-grounded claim, enhanced VA's duty to
assist a claimant in developing facts pertinent to his claim,
and expanded VA's duty to notify the claimant and his
representative, if any, concerning certain aspects of claim
development. VA promulgated regulations that implement these
statutory changes. See 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a) (2002).
Review of the claims folder reveals compliance with the VCAA.
That is, in an August 1995 letter, the RO explained to the
veteran and his representative the types of evidence needed
for adjudicating a PTSD claim, advised him that he could
provide such evidence or could provide a release that
authorized the RO to request the evidence, and noted that he
had a year in which to respond. Generally, the RO again
provided the veteran and his representative with notice of
the evidence needed to substantiate his claim, as well as the
relevant law and regulations, in the March 1996 rating
decision, April 1996 statement of the case, and subsequent
supplemental statements of the case dated through January
2003. In addition, the RO's January 2002 letter to the
veteran explained the notice and duty to assist provisions of
the VCAA, including the respective responsibilities of VA and
the veteran to identify and/or secure evidence, listed the
evidence already of record in the appeal, and asked the
veteran to submit or authorize the release of additional
evidence. The January 2003 supplemental statement of the
case includes the text of the relevant VCAA implementing
regulation. Accordingly, the Board finds that the veteran
has been afforded all notice required by the VCAA. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
With respect to the duty to assist, the RO has secured
service medical records, service personnel records, VA
treatment records, and a relevant medical examination. See
Charles v. Principi, 16 Vet. App. 370 (2002). The RO has
also satisfactorily attempted to obtain verification of the
veteran's alleged stressors through the appropriate available
channels. Despite the May 2003 assertion from the veteran's
representative that additional development may still be
attempted on this point, the Board finds, as discussed in
more detail below, that the RO's verification attempts are
sufficient. There is no other indication from the claims
folder or allegation from the veteran that relevant evidence
remains outstanding. Therefore, the Board finds that the
duty to assist is met. 38 U.S.C.A. § 5103A.
Finally, the veteran has had ample opportunity to present
evidence and argument in support of his appeal. As he has
received all required notice and assistance, there is no
indication that the Board's present review of the claim will
result in any prejudice to the veteran. Bernard v. Brown, 4
Vet. App. 384, 392-94 (1993).
The Board is also satisfied as to compliance with its
instructions from the previous remands. See Stegall v. West,
11 Vet. App. 268 (1998).
Analysis
Service connection may be granted if the evidence
demonstrates that a current disability resulted from an
injury or disease incurred or aggravated in active military
service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R.
§ 3.303(a) (2002). Generally, service connection requires
evidence of a current disability with a relationship or
connection to an injury or disease or some other
manifestation of the disability during service. Boyer v.
West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Mercado-Martinez
v. West, 11 Vet. App. 415, 419 (1998) (citing Cuevas v.
Principi, 3 Vet. App. 542, 548 (1992)). Where the
determinative issue involves medical causation or a medical
diagnosis, there must be competent medical evidence to the
effect that the claim is plausible; lay assertions of medical
status do not constitute competent medical evidence.
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v.
Derwinski, 2 Vet. App. 492, 494 (1992).
If an injury or disease was alleged to have been incurred or
aggravated in combat, such incurrence or aggravation may be
shown by satisfactory lay evidence, consistent with the
circumstances, conditions, or hardships of combat, even if
there is no official record of the incident. 38 U.S.C.A.
§ 1154(b); 38 C.F.R. § 3.304(d). This provision does not
establish a presumption of service connection, but eases the
combat veteran's burden of demonstrating the occurrence of
some in-service incident to which the current disability may
be connected. See Clyburn v. West,
12 Vet. App. 296 (1999); Cohen v. Brown, 10 Vet. App.
128 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995).
The Board notes that during the course of this appeal, VA
amended the regulation concerning service connection for
PTSD. Generally, where the law or regulation changes after a
claim has been filed or reopened but before the
administrative or judicial appeal process has been concluded,
the version most favorable to the veteran will apply. Karnas
v. Derwinski, 1 Vet. App. 308, 313 (1991).
The previous version of 38 C.F.R. § 3.304(f), in pertinent
part, reads as follows: Service connection for post-traumatic
stress disorder requires medical evidence establishing a
clear diagnosis of the condition, credible supporting
evidence that the claimed in-service stressor actually
occurred, and a link, established by medical evidence,
between current symptomatology and the claimed in-service
stressor. If the claimed stressor is related to combat,
service department evidence that the veteran engaged in
combat or that the veteran was awarded the Purple Heart,
Combat Infantryman Badge, or similar combat citation will be
accepted, in the absence of evidence to the contrary, as
conclusive evidence of the claimed in-service stressor.
The amended version of the regulation, in pertinent part,
reads as follows: Service connection for post-traumatic
stress disorder requires medical evidence diagnosing the
condition in accordance with VA regulations; a link,
established by medical evidence, between current symptoms and
an in-service stressor; and credible supporting evidence that
the claimed in-service stressor occurred. If the evidence
establishes that the veteran engaged in combat with the enemy
and the claimed stressor is related to that combat, in the
absence of clear and convincing evidence to the contrary, and
provided that the claimed stressor is consistent with the
circumstances, conditions, or hardships of the veteran's
service, the veteran's lay testimony alone may establish the
occurrence of the claimed in-service stressor. 38 C.F.R. §
3.304(f) (as amended by 64 Fed. Reg. 32,807-32808 (1999))
(effective March 7, 1997) (implementing the decision in
Cohen, supra). See 38 U.S.C.A.
§ 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat
veterans).
Because the amendments implement a court decision
interpreting the regulation and integrate provisions from
existing law and regulations, the Board finds that the
amended version of 38 C.F.R. § 3.304(f) is not more favorable
to the veteran. In any event, the RO's November 2002
supplemental statement of the case provided the veteran with
the text of the amended regulation and adjudicated the claim
thereunder. Therefore, the Board's consideration of the
regulation works no prejudice to the veteran. Bernard, 4
Vet. App. at 392-94.
When there is an approximate balance of positive and negative
evidence regarding any issue material to the determination,
the benefit of the doubt is afforded the claimant.
38 U.S.C.A. § 5107(b).
Review of the claims folder reveals a diagnosis PTSD
apparently related to the veteran's described in-service
stressors. Specifically, a July 1995 VA outpatient
psychiatric evaluation and the December 1995 VA psychiatric
examination both provide a diagnosis of PTSD. On each
occasion, the veteran described several in-service stressors.
He had no other pre-service or post-service stressor to which
the diagnosis could be attributed. Therefore, the only
question before the Board concerns the occurrence of the
stressors.
Initially, the Board finds that the veteran did not engage in
combat with the enemy. See Gaines v. West, 11 Vet. App. 353
(1998) (Board must make a specific finding as to whether the
veteran engaged in combat). The veteran's service records
show service in Vietnam from May 1969 to April 1970. He
served with HHS (Headquarters, Headquarters and Services)
Battery, 1st Battalion, 82nd Artillery. His military
occupational specialty was unit supply specialist. He
received medals indicating only service in Vietnam. Although
service personnel records designate campaign participation,
Tet 69 Counteroffensive and 11th Campaign Unnamed, the
veteran has not received a medal or badge suggesting any
combat participation, such as Purple Heart, Combat
Infantryman Badge, or other similar citation. In fact, the
veteran does not assert that he directly engaged in combat
with the enemy. Moreover, the Board emphasizes that the
veteran's alleged in-service stressors, discussed in detail
below, are not related to combat. Thus, the veteran is not a
combat veteran with alleged stressors related to that combat
experience. Therefore, the presumptions afforded a combat
veteran are not for application in this instance.
38 U.S.C.A. § 1154(b); 38 C.F.R. §§ 3.304(d) and (f).
Accordingly, the Board must find credible evidence that
corroborates the veteran's assertions that the alleged in-
service stressors actually occurred. Cohen, 10 Vet. App. at
147; Moreau v. Brown, 9 Vet. App. 389, 395 (1996). The Board
emphasizes that after-the-fact medical nexus evidence that
relates PTSD to service cannot also be the sole evidence of
the occurrence of the claimed stressor. Moreau, 9 Vet.
App. at 396. The veteran generally alleges that his compound
was hit by enemy fire, that he saw other soldiers get
injured, and that he saw bodies of dead Vietnamese and Viet
Cong while on convoys traveling Highway 1. He also described
an incident in which a soldier next to him lost a hand from
an explosion from a bomb in a soda can that was distributed
by the Vietnamese. He has not provided any specific
information, such as names, dates, or locations, with respect
to these alleged in-service stressors. As such, they are not
subject to verification.
The veteran also alleged during the October 1996 personal
hearing that he witnessed the death of a friend in service.
He identified the person as George Ingram and indicated that
the incident occurred in the spring or summer of 1969. In
response to the RO's request to verify the incident, the U.S.
Armed Services Center for Research of Unit Records (USASCRUR)
replied in December 1997 that research revealed a George
Ingram wounded in action in February 1969, prior to the
veteran's arrival in Vietnam. Thus, there is no credible
evidence that this stressor actually occurred.
In addition, the veteran described an incident in which he
was "gassed." In his March 2000 statement, he clarified
that the incident occurred during basic training in January
1969. He alleged that the gas affected his head and lungs,
making him very sick. The RO attempted to verify the
occurrence of this incident through USASCRUR, but was
ultimately referred to the Historical Research and Response
Team, U.S. Army Soldier and Biological Chemical Command. The
RO provided this office with the veteran's relevant
information and a copy of his March 2000 statement. The
December 2002 response indicated that it had no information
available to assist the veteran. Again, this alleged
stressor is not verified by credible, corroborating evidence.
Finally, the veteran related a stressful incident in which a
C-130 plane was shot down. His October 1995 and March 2000
statements further explained that the incident occurred on
his first day in Vietnam. He was supposed to be on the
plane, which was transporting troops to their next duty
station, but was held back due to an error in paperwork. The
plane was shot down, killing soldiers he had already met and
known. In January 2000 and August 2000, the RO sent to
USASCRUR the veteran's relevant service information and
information concerning the time, place, and circumstance of
the C-130 plane incident, as well as a copy of the veteran's
March 2000 letter, asking that office for any information
showing that the incident occurred. The responses from
USASCRUR dated in February 2000 and April 2001 indicated that
it was unable to document the occurrence of the incident.
Thus, there is no credible evidence that this stressor
actually occurred.
In the May 2003 Appellant's Brief, the veteran's
representative argues that additional development should be
undertaken to verify the occurrence of the C-130 plane loss.
In support of this argument, the representative offers
information printed from the Internet showing that C-130s
were lost in Vietnam. The Board finds this argument
unpersuasive. The means of verifying alleged in-service
stressors by veterans of the U.S. Army is inquiry to the
USASCRUR. Two such inquiries have been made without response
favorable to the veteran. Neither the veteran nor his
representative has provided additional information or
evidence that might alter the search undertaken by USASCRUR
personnel to verify the plane loss in question. The duty to
assist requires VA to make reasonable efforts to assist the
veteran in obtaining evidence necessary to substantiate his
claim. 38 U.S.C.A.
§ 5103A(a). The Board finds that the RO has made all such
reasonable efforts in this case and that there is no basis
for remanding the case for additional development attempts.
In summary, the Board finds that, although there is a
diagnosis of PTSD related to in-service stressors described
by the veteran, there is no credible supporting evidence that
the claimed in-service stressors actually occurred.
38 C.F.R.
§ 3.304(f). On this point, the evidence is not so evenly
balance to as to require resolution of doubt in the veteran's
favor. 38 U.S.C.A. § 5107(b). Accordingly, the Board finds
that the preponderance of the evidence is against service
connection for PTSD. The appeal is denied.
ORDER
Service connection for PTSD is denied.
____________________________________________
V. L. Jordan
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.